People v Rosado

Criminal Court of the City of New York, Bronx County

Decided on December 5, 2025

Docket No. CR-009210-25BX

Ralph L. Wolf, J.

Summary

Defense motion seeking dismissal of the information on statutory speedy trial grounds is GRANTED.

Procedural History

Luz Rosado was arrested on March 28, 2025 and charged with menacing, criminal possession of a weapon and harassment under Penal Law (PL) §§ 120.14, 265.02 and 240.26 respectively. Ms. Rosado was arraigned later that day and released on her own recognizance. The case was adjourned to May 7, and July 2, 2025 for conversion and the prosecution to file their Certificate of Compliance (COC). The supporting deposition was filed on May 12, 2025. The prosecution filed their COC, Automatic Disclosure Form (ADF) and Statement of Readiness (SOR) on June 23, 2025 (87 days after arraignment). On June 30, 2025 the defense submitted a letter outlining discovery deficiencies. On July 2, 2025 the parties were ordered to confer and the case was adjourned to August 6, 2025 for a COC conference. On August 6, 2025 the instant motion schedule was set.

Relevant Facts

On April 4, 2025, the prosecution requested discovery from the New York Police Department (NYPD) and on April 18 and April 21, 2025 they sent follow-up emails. After the prosecution filed their COC on June 23, 2025, the defense emailed a letter with objections on [*2]June 30, 2025 indicating that they believed the prosecution failed to disclose various items of discovery.

This case comes before this court on a defense motion to dismiss. The defense argues that they are missing several items of discovery including Giglio materials, activity logs and surveillance video. Some of the missing Giglio materials include NYPD Internal Affairs Bureau (IAB) logs, attachments for those logs and Internal Case Management and Tracking Worksheet/ Allegation Finding (ICMT). The missing activity logs are for two officers, Officer Jonathan Virtuoso who the prosecution concedes was involved in the arrest, and Officer Selenia Rodriguez, who is the partner of an officer involved in the arrest. The defense argues that the activity report for Jonathan Virtuoso is a one-page document stating "no reported activities." However, the COC indicates that Officer Virtuoso, and Officer Rodriguez's partner were active in the instant arrest. Finally, the defense raises the issue of missing building surveillance.

The prosecution argues that they turned over all of the discovery that they are required to turn over, some of the materials that the defense requests, if they exist, are not discoverable (Opposition at 17, Exhibit 6), and the Court should deny the request for disclosure of additional IAB investigations materials as the materials "do not tend to impeach credibility and do not relate to the subject matter of the case." (Opposition at 20.) Additionally, the prosecution argues that they have no information that Officer Rodriguez was involved in this case. As to Officer Virtuoso's activity log the prosecution provides that they "requested the activity log reports for all involved officers [and] the document shared with defense is what the people received from NYPD." (Opposition at 14.) Finally, the prosecution responds that, despite twice reaching out to building management for the requested building surveillance video, they were unable to obtain any surveillance. (Opposition Exhibit 6.)

Legal Analysis

Since the top charge in this case is an A misdemeanor, CPL § 30.30(1)(b) requires that the People be ready within 90 days of arraignment or by June 26, 2025 in this case. See People v. Brown, 28 NY3d 392, 403 (2016). Under CPL § 245.10(1)(a)(ii), "[w]hen the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment." Therefore, initial discovery obligations in this case were due by May 2, 2025.

A valid COC requires the prosecution to make a diligent, good faith effort to determine what discoverable material exists and to disclose those materials to the defense. CPL

§ 245.20(2).

Read together, CPL 245.50 and CPL 30.30 require that due diligence must be conducted prior to filing a COC (see CPL 245.50[1] [detailing representations that must be included in a COC]; CPL 245.50[3] [directing that "the prosecution shall not be deemed ready for trial for purposes of (CPL 30.30) ... until it has filed a proper certificate pursuant to (CPL 245.50[1]).

People v. Bay, 41 NY3d 200, 212 (2023). Due diligence is "[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation." Id. at 211, quoting Black's Law Dictionary 573 (11th ed 2019). Recent amendments to CPL § 245 introduce a list of factors courts must consider when determining whether due diligence has been exercised:

[1] the efforts made by the prosecutor to comply with the requirements of this article; [2] the volume of discovery provided and the volume of discovery outstanding; [3] the [*3]complexity of the case; [4] whether the prosecutor knew that the belatedly disclosed or allegedly missing material existed; [5] the explanation for any alleged discovery lapse; [6] the prosecutor's response when apprised of any allegedly missing discovery; [7] whether the belated discovery was substantively duplicative, insignificant, or easily remedied; [8] whether the omission was corrected; [9] whether the prosecution self-reported the error and took prompt remedial action without court intervention; and [10] whether the prosecution's delayed disclosure of discovery was prejudicial to the defense or otherwise impeded the defense's ability to effectively investigate the case or prepare for trial.

CPL § 245.50(5)(a). Courts are instructed to evaluate the factors holistically. "The court's determination shall be based on consideration of all factors listed in paragraph (a) of this subdivision and no one factor shall be determinative." CPL § 245.50(5)(b). Based on the analysis of these factors below, this court cannot find that the prosecution exercised diligence before the filing of their COC.

• Prosecutorial Compliance Efforts. The prosecution offers almost no explanation of pre-COC diligence, and very little evidence or argument as to their efforts to comply with statutory requirements. The prosecution requested discovery via email three times in the month after Ms. Rosado's arraignment, beginning April 4, 2025, then filed their COC and made disclosure three days before their CPL § 30.30 time expired. The prosecution does not explain when they received discovery or any efforts they made to provide discovery within 35 days of arraignment (CPL § 245.10) or impeachment "information expeditiously upon its receipt" (CPL § 245.20(1)(k)). The prosecution argues that while they "did not completely comply with the requirement under CPL § 245.10(1), the People nonetheless exercised due diligence." (Opposition at 23.) However, three emails and a conclusory statement do not demonstrate diligence.

In response to the defense argument that the prosecution did not disclose discovery within the 35 days mandated by the statute, the prosecution argues that they disclosed some discovery at arraignment. This argument shows little to no effort on the part of the prosecution "to ascertain the existence of material or information discoverable under [CPL § 245.20(1)] and to cause such material or information to be made available for discovery . . . ." CPL § 245.20(2). The prosecution requested discovery April 4, 2025, or seven days after arraignment, then sent follow-up emails on April 18 and 21, 2025. There is no information of any additional follow-up before the filing of the COC on June 23, 2025 (87 days after arraignment). Before the 87th day, the prosecution had only disclosed the materials that are necessary for arraignment, which demonstrate little diligence on the part of the prosecution to obtain and disclose discovery in violation of CPL §§ 245.10 and 245.20(1)(k). Any other discovery efforts took place after the filing of the COC, and the prosecution provide no information on their efforts to discover, review and disclose Giglio materials and potential surveillance from the scene of the alleged crime. Compliance efforts are minimal in this case.

• Volume of Discovery Provided/Outstanding. It appears that most of the discovery was disclosed eventually. However, there are items that are missing that the prosecution did not exercise diligence to discover and disclose. It appears that the prosecution made generalized requests for discovery and then turned over to the defense what the NYPD [*4]provided with little review beyond a standard checklist of potential discovery. The fact that the prosecution exercised little diligence and did not make additional efforts to obtain the missing discovery weighs against them.

• Complexity of the Case. This is a menacing/possession of a weapon/harassment case, comprised of very common charges in Bronx County. The discovery consists of items with which prosecutors should be very familiar. Neither side has demonstrated any level of out-of-the-ordinary complexity, so missing discovery should have been easily noticed. This factor suggests the prosecution fell short of diligence.

• Prosecutorial Knowledge of Missing Material. From the briefs, the prosecution does not appear to have been aware that Officer Virtuoso's activity log noted "no reported activities," even though Officer Virtuoso participated in the arrest. (Defense Motion at 5.) The prosecution should have known that it does not seem reasonable for an officer's activity log to indicate "no reported activities," if they participated in an arrest. The prosecution also did not appear to be aware that Officer Selenia Rodriguez was the partner of Officer Leidy Santos who also participated in the arrest. The question being raised by this fact is that if one partner was on the scene and disclosed their activity logs, the other partner was likely on the scene and should have disclosed their activity logs. The prosecution could have rebutted this inference after looking into the circumstances, but the prosecution's response was that they did not have any information that Officer Rodriguez was involved in this case. For these activity logs, the prosecution failed to demonstrate diligence before and after the filing of their COC, especially once they were alerted to the issues by the defense. As far as any building surveillance, the prosecution indicates that they reached out to building management on two occasions, but they do not indicate whether these efforts were before or after the filing of their COC, and no information related to building surveillance is included in their COC.

The prosecution argues that some of the materials in their possession that the defense argues are Giglio material are not discoverable. The prosecution cites several cases where the court denied admission of evidence against a testifying witness at trial in support of their position. People v Walker, 83NY2d 455, 461 (1994), People v Smith, (27 NY3d 652 (2016), People v Williams, 184 AD3d 442 (1st Dept, 2020). However, materials that are admissible at trial cannot be conflated with materials that are discoverable. See People v. Payne, 79 Misc 3d 827, 830 (Crim Ct, Bronx County 2023). Nowhere in the discovery statute does it limit disclosure to only materials that would be admissible at trial. Further, the trials in each of the cited cases took place prior to the 2020 enactment of the current discovery statute that mandates a presumption in favor of disclosure. CPL § 245 is intended to provide more expansive discovery, so the fact that the defense had the information to raise the issue of admissibility demonstrates that the materials were discoverable pre-2020 and are discoverable now. See People v. Duran, 83 Misc 3d 1007, 1014 (Crim Ct, Bronx County 2024) ("However, the Legislative reforms that animate CPL § 245.20 (1)[] are unambiguous and the disclosure mandate more expansive . . . .")

One other case cited by the prosecution discusses the disclosure of material that was turned over once it was no longer shielded by statute and other material that was not in the possession of the prosecution. Here, the material is not shielded by statute and it is apparent that the prosecution does possess much of the materials sought by the defense. See People v Burrows, 237 AD3d 1481 (4th Dept, 2025). Therefore those materials [*5]should have been disclosed. This factor demonstrates that the prosecution fell short of the statutory requirements.

• Explanation of Discovery Lapse and Response to Discovery Lapse. The prosecution's response is that some of the missing materials are not discoverable (Giglio information), the prosecution shared what the NYPD provided (missing activity logs), and that they were unable to reach building management (building surveillance). It appears from the briefs and exhibits that the defense received what the NYPD provided the prosecution with little review and no inquiries as to any deficiencies noticed beyond a basic checklist of items.

Diligence must mean there is some real, active effort to obtain and disclose discovery materials. What the prosecution demonstrates is a passive discovery process where they accepted what was provided to them, and only responded when the defense alerted them to missing discovery. If the prosecution is to demonstrate diligence, they must be more than a conduit through which discovery is passed. This factor weighs in favor of the defense.

• Belated Discovery was Duplicative, Insignificant or Easily Remedied. The prosecution argues that the missing discovery is duplicative, but does not provide any detail to support their assertion. Neither party addresses whether the missing discovery is insignificant. However, it is easy to see how the missing materials (Giglio/impeachment materials, activity logs for officer/witnesses who participated in the arrest, and video that may have captured any part of the alleged activities) could, potentially, be significant. For the Giglio materials, it is clear the prosecution possesses, at least, some of those materials, and could easily remedy the failure to disclose those materials, if they chose to. The prosecution had a duty to disclose all of the impeachment material, whether or not they believed the material tended to impeach the credibility of their witnesses. CPL § 245.20(1)(k). It is not for the prosecution to withhold Giglio material because they believe it is not useful to the defense and not admissible at trial, and their position has no foundation in CPL § 245. With respect to the activity logs and building surveillance, while we don't know what exists, due to the prosecution's lack of diligence, the lack of information related to these materials could be remedied with simple efforts on the part of the prosecution to follow up with their witnesses and contacts. This factor favors the defense.

• Omission Corrected. While the prosecution inquired about some of the missing discovery, they have not provided any discovery since they filed their COC, and no supplemental COC was filed to provide any more details about the prosecution's efforts to discover and disclose materials to the defense. This factor favors the defense.

• Error Self-Reported and Promptly Remedied. The prosecution did not self-report any missing items.

• Prejudice to Defense. The prosecution argues that there is no prejudice to the defense, but that is a self-serving, conclusory statement. There is no true way to make that determination without disclosure of the missing discovery. See People v. Mesan-Moran, 2025 NY Slip Op 25188, at *8 (Crim Ct, Bronx County 2025), and People v. Rubio, 2025 Slip Op 25206, at *4 (Crim Ct, Bronx County 2025). The Court of Appeals has held that prejudice need not be found to dismiss a case where the issue is prosecution readiness because they did not file a valid COC within the time allotted under CPL § 30.30. People [*6]v. Bay, 41 NY3d 200, 214 (2023).

After consideration of all of the CPL § 245.50(5)(a) factors, this court finds that the prosecution failed to demonstrate that they exercised sufficient diligence to ascertain the existence of material and information subject to discovery and make that discovery available to the defense prior to filing their initial COC. The prosecution demonstrated some effort prior to filing their COC, but the record is deficient as to the diligence necessary to satisfy their burden.

Conclusion

Because the prosecution has not demonstrated compliance with the statutory mandates of discovery, including diligence prior to filing their COC, their COC and SOR were invalid. Without a valid COC and SOR, the prosecution could not be deemed ready for trial within 90 days under CPL § 30.30 and this court must dismiss this case.

The motions for hearings and other issues presented in the omnibus motion are moot.

The forgoing constitutes the order and decision of the court.

Dated: December 5, 2025

Bronx, NY

Ralph L. Wolf, J.C.C.